883 F. 2d 1025 - United States v. Flores

MEMORANDUM**

Francisco Babichi Flores appeals from the district court's denial of his motion to suppress evidence seized following an allegedly illegal automobile stop. We have jurisdiction, 28 U.S.C. Sec. 1291, and we affirm.

We review de novo the grant or denial of a motion to suppress evidence. United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988). We also review de novo whether founded suspicion justified an investigatory stop. Id.

Appellant asserts that the stop of his automobile, which was being driven on Interstate Highway 10 in southern Arizona about 80-90 miles from the Mexican border, was illegal because the Border Patrol agents lacked founded suspicion that he was engaged in criminal activity. This argument lacks merit.

The investigatory stop of a moving vehicle must be justified by articulable facts that give rise to a founded suspicion that the particular person stopped is engaged in criminal activity. United States v. Robert L., No. 88-1168, slip op. 5149, 5153-54 (9th Cir. May 15, 1989). The totality of the circumstances is taken into account in evaluating the lawfulness of the stop. United States v. Sokolow, 109 S.Ct. 1581, 1585 (1989). The totality of the circumstances includes objective observations and any available police report information, United States v. Cortez, 449 U.S. 411, 418 (1981), as well as proximity to the border, the driver's behavior, the type of vehicle involved, and the occupants' appearance indicative of residence in Mexico. United States v. Hernandez-Gonzales, 608 F.2d 1240, 1243 (9th Cir.1979) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975)).

Here, the Border Patrol agent Francisco Bustamante recognized the hats worn by the car's passengers to be characteristic of people from a certain area of Mexico. See United States v. Magana, 797 F.2d 777, 781 (9th Cir.1986) (apparent Mexican ancestry alone is insufficient to justify a stop but is relevant in determining whether founded suspicion exists). Moreover, Bustamante knew that the driver, whom he recognized from a prior police contact, owned two or three vehicles, yet the vehicle was a rental car. See Hernandez-Gonzales, 608 F.2d at 1243.

Further, the behavior of the persons in the car was suspicious. When Flores saw the marked Border Patrol vehicle, he slowed to a speed below the normal traffic speed. See Magana, 797 F.2d at 781. Although the persons in the car had been talking, they stopped talking when the Border Patrol vehicle approached and the passengers looked straight ahead. See Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir.1988) (although avoiding eye contact with officials, by itself, does not justify an investigatory stop, it may be a factor in determining whether founded suspicion exists). From a prior police contact when the police handcuffed Flores along with several undocumented aliens, Bustamante knew that Flores had a prior drug conviction. See Cortez, 449 U.S. at 418.

Although each fact alone would be insufficient to justify a stop, together they raised reasonable suspicion of criminal activity and justified the stop.1 See Magana, 797 F.2d at 780-82 (founded suspicion existed where pickup truck was of a kind typically used to transport illegal aliens and was traveling on a major artery for smuggling, six of the occupants had a distinctly different Mexican appearance from the driver, and the driver's driving practices and the truck's back load suggested an attempt to conceal something in the back). Therefore, the district court did not err in denying Flores' motion to suppress.

AFFIRMED.

The majority has correctly set forth the fundamental rule of fourth amendment jurisprudence that an investigatory stop of a moving vehicle must be justified by specific and articulable facts which, when considering the totality of the circumstances, give rise to a founded suspicion that the particular person stopped is engaged in criminal activity. See, e.g., United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).

The majority, however, fails to apply this basic principle to the facts of this case. Taken singly or together, the Border Patrol agents' knowledge of Flores at the time they stopped his vehicle falls woefully short of reasonably indicating that Flores was currently engaged in criminal activity. At the suppression hearing, Agent Bustemonte testified that he and his partner based their stop of Flores' vehicle on the fact that: (1) Flores was driving a rental car; (2) Flores had a prior state conviction for attempted sale of marijuana; (3) Flores and the other two passengers were of apparent Hispanic descent and wore hats native to Sonora, Mexico; (4) Flores slowed his speed as the agents' marked Border Patrol vehicle pulled along side his car; and that (5) Flores' passengers ceased their conversation and looked straight ahead at the approach of the Border Patrol vehicle.

Without individually addressing each of these asserted incriminating factors, I simply note that even a generous reading of these facts, including reasonable inferences drawn therefrom, fails to establish any evidence of ongoing criminal activity. Conspicuously absent are such factors as evasive or dangerous driving tactics, heavily laden or unusually outfitted vehicles, recent illegal border crossings in the area, credible tips of criminal or suspicious activity by informants, or proximity to the border which we have found indicative of founded suspicion sufficient to effect an investigatory stop in similar situations. See e.g., United States v. Sanchez-Vargas, No. 87-5346, slip op. 6961-62 (9th Cir. June 27, 1989) (collecting cases); United States v. Garcia-Nunez, 709 F.2d 559, 561 (9th Cir.1983); United States v. Hernandez-Gonzalez, 608 F.2d 1240, 1242-43 (9th Cir.1979).

Simply put, the majority's conclusion that the seemingly innocent behavior of Flores and his companions justified an investigatory stop of Flores' vehicle ignores the constitutional requirement that officers, before detaining an individual, reasonably suspect that he is engaged in, or poised to commit, a criminal act at that time; it is not enough that an individual has committed crimes in the past or has the propensity to commit crimes. See, e.g., Cortez, 449 U.S. at 418; Terry v. Ohio, 392 U.S. 1, 21 n. 18 (1968); Brown v. Texas, 443 U.S. 47, 51 (1979). Disturbingly absent from Border Patrol Agent Bustemonte's testimony at Flores' suppression hearing is any indication of what particular criminal activity--such as alien smuggling or drug trafficking--the agents suspected Flores of engaging in at that time.1 Because the sanctioning of investigatory stops based on less than suspicion of ongoing criminal activity not only violates fundamental fourth amendment principles, but also raises the specter of overbearing or harassing police behavior based solely on imprecise stereotypes and other dubious indices, I dissent.